Opinion
DOCKET NO. A-5123-13T4
09-16-2016
DIANE CORTER and WILLIAM JOHN CORTER, JR., her husband, Plaintiffs-Appellants, v. JOSEPH GHAHHARI, M.D., Defendant-Respondent, and ADVANCED INTERVENTIONAL PAIN MANAGEMENT, LLC, NOEMY ARONOVICI RUBINCHIK, M.D., and WAYNE SURGICAL CENTER, LLC. Defendants.
Craig M. Rothenberg argued the cause for appellants (Rothenberg, Rubenstein, Berliner & Shinrod, attorneys; Mr. Rothenberg, of counsel and on the brief; John D. Gagnon, on the brief). Hugh P. Francis argued the cause for respondent (Francis & Berry, attorneys; Mr. Francis, of counsel and on the brief; Joanna Huc, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Kennedy and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2675-10. Craig M. Rothenberg argued the cause for appellants (Rothenberg, Rubenstein, Berliner & Shinrod, attorneys; Mr. Rothenberg, of counsel and on the brief; John D. Gagnon, on the brief). Hugh P. Francis argued the cause for respondent (Francis & Berry, attorneys; Mr. Francis, of counsel and on the brief; Joanna Huc, on the brief). The opinion of the court was delivered by KENNEDY, J.A.D. PER CURIAM
Plaintiffs, Diane and William John Corter, Jr., appeal the denial of their motion for judgment notwithstanding the verdict (JNOV), or, alternatively, for a new trial, following entry of judgment on behalf of defendant in accordance with a jury verdict of no cause of action. Plaintiffs had filed a complaint against defendant Joseph Ghahhari, D.O., and others, alleging medical malpractice in connection with an epidural steroid injection. Plaintiffs argued that defense experts had improperly, and without notice, changed their opinions at trial and that defense counsel's "repeated misconduct" resulted in unfair prejudice. Plaintiffs raise these arguments on appeal. We affirm.
Plaintiffs' claims against all other defendants were dismissed prior to trial. Additionally, defendant, improperly pleaded as Joseph Ghahhari, M.D., was later amended to Joseph Ghahhari, D.O.
I.
We briefly recount the facts from the trial record in order to provide some context for our opinion. Other facts, pertaining to the issues plaintiffs raise on appeal, are recounted later in this opinion.
Plaintiffs were married in 1979, and have two grown children. In 2005, Diane, then forty-three years of age, began experiencing pain and stiffness in her neck, including "some tingling in [her] fingers." Her family physician first prescribed physical therapy, which, according to Diane, failed to produce any long-lasting relief. Consequently, Diane's family physician referred her to Wayne Surgical Center for pain management. Following a brief effort to treat her condition with medication, on October 4, 2007, a physician at Wayne Surgical Center gave Diane a cervical epidural steroid injection (CESI), which provided her with six to seven months of relief.
We refer to plaintiffs by their first names for ease of reference and intend no disrespect. "Plaintiff" refers to Diane alone. --------
On August 15, 2008, Diane returned to Wayne Surgical for a second CESI, but this time the procedure was performed by defendant, not the first physician. Unlike the first CESI, the second was performed under general anesthesia. Following the second procedure, defendant undertook a neurological exam of Diane, and he found decreased strength and sensation in her right arm.
Approximately a month later, defendant gave Diane another CESI, which, again, was undertaken after plaintiff had been given general anesthesia. Diane was again advised that the risks associated with the procedure included nerve damage, which was described as "very rare." When plaintiff awoke from the third CESI, she complained of slurred speech and "extensive pain" in her right arm and armpit. She also experienced difficulty opening her right eye. Plaintiff was "very upset," despite defendant's assurances that her symptoms were due to the anesthesia and would "wear off" in short order.
That night, Diane experienced "terrible," "throbbing" pain in her neck, right arm, and fingers, which continued into the next morning. Diane called the surgical center, and a nurse again assured her that her symptoms were caused by the anesthesia and would "wear off." Thus reassured, plaintiff returned to work, but by the afternoon she called defendant, complaining of "cramping" and "numbness" in her right arm, "drooping" of her right eyelid, and "slurred" speech. Defendant advised her to go to the hospital emergency room for evaluation and an MRI examination.
That evening, plaintiff went to the emergency room at Chilton Memorial Hospital where she was seen by Jennifer E. Monck, M.D., a neurologist, who performed a diagnostic examination and ordered a battery of tests. The tests included MRIs of Diane's brain and spine, as well as a lumbar puncture. Dr. Monck concluded that plaintiff's symptoms were caused by "the malperformed . . . epidural injection" and admitted her to the hospital for treatment. Plaintiff remained in the hospital for five days and was treated with pain medication and intravenous steroids to reduce the inflammation to her spinal cord.
After her discharge from the hospital, plaintiff was treated by Dr. Monck and by her family physician and did not work for three months while she received physical therapy. Since 2008, Dr. Monck prescribed various medications in an effort to address plaintiff's "chronic pain," without success. In addition to chronic pain, plaintiff asserted she sustained permanent neurological deficits as a consequence of defendant's "malpractice." These deficits include proprioceptive sensory loss, clumsiness, coordination issues, impaired balance, dizziness, lethargy, confusion, and depression.
On March 22, 2010, Diane and her husband filed a complaint for malpractice against defendant and, following discovery, proceeded to trial. During trial, plaintiffs presented testimony from an expert who opined that defendant deviated from accepted standards of care by, among other things, piercing the spinal cord with the epidural needle and injecting the steroid directly into the cord, thereby permanently injuring plaintiff.
Defendant called two expert witnesses at trial: Christopher Gharibo, M.D., and Stephen Sachs, M.D. In his initial, written report, Dr. Gharibo opined that defendant did not deviate from accepted standards of care in undertaking the CESI and that while the needle pierced the outer membrane covering plaintiff's spinal cord, the available evidence did not support the claim that the needle pierced through the membrane and into the cord itself. During a pretrial deposition, Dr. Gharibo testified in response to a hypothetical question from plaintiff's counsel that if the needle had pierced into the spinal cord and an injection had taken place, the doctor would have seen "some intrathecal spread" of the contrast material and would have felt "considerable resistance to the injection itself, given the firmness of the spinal cord[,]" both of which would have indicated that the needle was "in the wrong place."
At trial, Dr. Gharibo testified that he had no opinion, one way or another, whether the needle wielded by defendant had actually pierced into plaintiff's spinal cord, but even if it had, defendant did not deviate from the standard of care. On cross-examination by plaintiffs' counsel regarding his deposition testimony, Dr. Gharibo said a doctor "may or may not feel the resistance" upon his injection of dye into the spinal cord.
Dr. Sachs was initially retained as an expert by another party in the case, but was later identified by defendant as an expert, following dismissal of claims against the party who had originally named Dr. Sachs as an expert. In his original written report, Dr. Sachs opined generally about the extent of plaintiff's injury, and whether the injuries had been caused by defendant. At one point in his report, Dr. Sachs stated:
[I]t is likely, therefore, that on the second attempt [defendant] advanced the spinal needle further and on that second attempt injected 3 ml of contrast, 6 mg of Betamethasone (volume unknown), and 2 ml of saline. This injection was likely intramedullary into the patient's spinal cord. This scenario would explain the observation by the radiologist, confirmed by myself on review of CD-ROM images, that the MRI of the cervical spine performed on 09/19/2008 demonstrated an area of increased signal extending from C5 through T1 within the patient's spinal cord in the right paramedian area extending to the posterior spinal cord margin. . . .At trial, Dr. Sachs testified extensively about plaintiff's injuries and disputed whether defendant had caused those injuries, even if he had pierced into plaintiff's spinal cord with the epidural needle. On cross-examination, however, Dr. Sachs responded as follows:
Q: [Y]ou've given an opinion to this jury that [Diane's] spinal cord was injected into on September 17, 2008, correct?
A: I said that that's what I thought had occurred.
Q: That's your opinion, you're an expert. You give opinions.
A: I said that's what I thought I had — that had occurred. But, I'm not an expert in pain management or anesthesiology. I do not do these injections. And there may be another mechanism that resulted in the finding on the MRI scan.
. . . .
A: So, I'll be glad to talk to you about what the MRI scan shows. But, I don't have an expert opinion in terms of exactly what happened at the time that this injection was made.
. . . .
As we stated earlier, the jury returned a verdict in favor of defendant, finding that he did not deviate from the accepted standards of medical care. Plaintiffs' motion for JNOV or, in the alternative, a new trial was denied on June 6, 2014.
A: I had an opinion before I read the opinion of an expert in the field.
Mr. Rothenberg: Objection, he can't rely upon another expert to modify his opinion.
The Court: That — that's —
Mr. Rothenberg: Especially if it's not in one of the reports.
The Court: That's sustained.
This appeal followed.
II.
We shall address first plaintiffs' arguments regarding changes in the opinions of defense experts and then we shall briefly address plaintiffs' arguments alleging misconduct by defense counsel during trial.
A.
Plaintiffs argue that the "surprise" changes in the opinions of both defense experts at trial deprived them of a fair trial and that such "surprise tactics" constitute a violation of counsel's duty of candor, as well as the court rules regarding discovery.
On the return date of the JNOV motion, the trial court held:
This Court has listened to your argument, Mr. Rothenberg. The Court is not going to grant your application. I won't reiterate the law as Mr. Brennan has just articulated it, but the standards for a J.N.O.V. [have] not been met. What I believe or I would have done is of no moment. This jury listened to this case for a number of weeks, listened to the expert testimony, and came to its decision. We do not know what the jury considered, what they thought of, why they did what they did. But there's nothing before this Court to indicate that there was anything untoward that would warrant this Court directing a judgment notwithstanding the verdict or . . . directing that a new trial be had.
Rule 4:49-1(a) governing motions for a new trial, provides, in relevant part, that
[t]he trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.In reviewing an order on a motion for a new trial "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. An appellate court must give due deference to the trial court's "feel of the case[,]" that is, its regard for "the jury to pass upon the credibility of the witnesses" and whether "it clearly and convincingly appears that there was a miscarriage of justice under the law." Carrino v. Novotny, 78 N.J. 355, 361 (1979) (quoting R. 4:49-1(a)); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (holding that in reviewing the trial court's denial of a motion for a new trial, "the appellate court must give deference to the views of the trial judge . . . .").
Moreover, our Supreme Court has stated:
[A] motion for a new trial should be granted only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court. . . . Thus, a trial judge is not [to] substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion[.]
A miscarriage of justice has been described as a pervading sense of wrongness needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible
evidence to support the finding, obvious overlooking or under-valuation of crucial evidence, [or] a clearly unjust result[.]The appellate court must "make [its] own determination as to whether or not there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record — such as witness credibility, demeanor and feel of the case." Borngesser ex rel. Estate of Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377-78 (App. Div. 2001); see also Dolson, supra, 55 N.J. at 6-7. Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 4:49-1(a) (2016). Jury verdicts should be cast aside in favor of a new trial sparingly and only to prevent a clear injustice. Caicedo v. Caicedo, 439 N.J. Super. 615, 628-29 (App. Div. 2015). In fact, "[o]ur judicial framework accepts that there is a presumption of correctness in jury verdicts[,]" which explains the high standard governing motions for a new trial. Romano v. Galaxy Toyota, 399 N.J. Super. 470, 477 (App. Div. 2008) (citing Baxter v. Fairmont Food Co., supra, 74 N.J. at 598), certif. denied, 196 N.J. 344 (2008).
[Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (internal citations and quotation marks omitted).]
Guided by these standards, we do not find that the trial judge erred in denying plaintiffs' motion for a new trial. Initially, we find there was ample evidence in the record for reasonable minds to conclude that defendant did not deviate from the standard of care. Dr. Gharibo, defendant's liability expert, testified on direct examination that even if he assumed defendant had pierced the spinal cord with the epidural needle, that fact alone would not demonstrate a departure from the standard of care:
If you did everything the way you should do, you have exercised appropriate technique, appropriate safeguards, it's like driving right. You drove right, you drove within the speed limit, you obeyed all the laws, but, you still got into an accident.Our examination of the trial record convincingly demonstrates there was sufficient evidence supporting the jury's conclusion that defendant did not deviate from the standard of care.
So, it's the same process here. If you're careful with your technique. If [you're] meticulous with your technique, you gradually advance your needle. And you have good needle control, and you went past the dura into the spinal cord, but, you really did everything you can in — under the circumstances to minimize neurological injury. Such as using fluoroscopy, being careful, using air with your loss of resistance. But, you still damaged the spinal cord, that's — that's a risk of medicine. I mean, you took all of the proper precautions here. There is not anything more that you could have done to avoid neurological injury. But it did happen. That's why - that's one of the most common complications of cervical epidural. As rare as it may be, it has occurred hundreds of times.
Also, the record does not support plaintiffs' assertion that defense counsel knew that Dr. Sachs would change his testimony regarding whether defendant pierced the cord with the epidural needle. During an in camera discussion prior to Dr. Sachs' testimony, counsel stated that Dr. Sachs would say that in his initial opinion defendant had pierced into the spinal cord. And, in fact, Dr. Sachs did say that on direct examination.
Plaintiffs' reliance on McKenney v. Jersey City Med. Ctr., 167 N.J. 359 (2001), is misplaced. In that case, there was a significant failure to disclose anticipated changes in the defendant's testimony to the trial court and opposing counsel. Id. at 371. The plaintiffs went to trial based on false information, and thus the trial court's "failure to grant a mistrial was an abuse of discretion." Id. at 376.
By contrast, here, it was not surprising to plaintiffs that defendant's experts would opine that even if defendant had pierced the spinal cord, he still did not breach the standard of care and that that act did not cause the damages plaintiff alleged in her complaint.
For these reasons, we find no error in the trial court's denial of plaintiffs' motion for a new trial.
B.
Plaintiffs argue that defense counsel's "numerous and repeated improprieties" during the trial deprived them of a fair trial. They argue that this behavior included:
[D]isparaging and inflammatory remarks directed at plaintiffs and plaintiffs' counsel; bullying plaintiffs' witnesses with argumentative questioning and sarcastic comments; improperly spoon-feeding defense witnesses the desired testimony with leading questions; making improper and highly prejudicial arguments to the jury; and countless other antics that are not depicted on the transcripts, such as laughing, gasping, cackling, mumbling, and making various gestures and facial expressions throughout the trial.The trial court in denying the motion found no basis to conclude that "the cumulative conduct of defense counsel caused this jury to come to the determination that [defendant] did not deviate from the accepted standards of care . . . ." We agree. Much of the conduct plaintiffs complain of was either undertaken without objection by plaintiffs' counsel, or, where counsel did object, the court took appropriate action. We also discern no basis to conclude that the actions of defense counsel were "capable of producing an unjust result." See R. 4:49-1(a).
In any event, we find this argument to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION